Exhibit 10.1
THIRD AMENDMENT TO LONG TERM AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This Third Amendment to Long Term Amended and Restated Revolving Credit
Agreement ("Third Amendment") is dated as of January 1, 1997, and is entered
into among Ag-Chem Equipment Co. Inc., a Minnesota corporation (the "Company"),
NBD Bank ("NBD") for itself and as Agent (in such capacity "Agent"), National
City Bank of Minneapolis, and Xxxxxx Trust and Savings Bank (together with NBD
being sometimes referred to collectively as the "Lenders" and individually as a
"Lender"). This Third Amendment amends that certain Long Term Amended and
Restated Revolving Credit Agreement dated as of January 12, 1996, as amended by
the First Amendment to Long Term Amended and Restated Revolving Credit
Agreement, dated March 29, 1996, and the Second Amendment to Long Term Amended
and Restated Revolving Credit Agreement, dated June 28, 1996 (as amended, the
"Credit Agreement"), among the Company, Agent and Lenders. Capitalized terms not
otherwise defined in this Third Amendment shall have the meanings given to them
in the Credit Agreement.
WHEREAS, the Company has requested that the Agent and Lenders consent
to the Company transferring certain of its assets to a new, wholly-owned
subsidiary of the Company, Ag-Chem Sales Co., Inc. ("Ag-Chem Sales") and that it
be allowed to generally transfer assets between subsidiaries.
WHEREAS, the Agent and Lenders have agreed to consent to such
transactions on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Consent. The Agent and Lenders hereby consent to the Company
transferring assets to Ag-Chem Sales effective as of January 1, 1997 (the
"Transfer to Sales"), subject to the following terms and conditions:
(a) Ag-Chem Sales will deliver simultaneously with the
execution of this Consent, guaranties of the Credit Agreement and Short
Term Revolving Credit Agreement dated June 28, 1996, as amended, among
the Company, Agent and Lenders, substantially in the form given by the
existing Guarantors;
(b) Ag-Chem Sales will deliver to Agent an officer's
certificate, certifying copies of its articles of incorporation, bylaws
and resolutions authorizing its guaranties; and
(c) Ag-Chem Sales will be owned 100% by the Company.
2. Acknowledgments. The parties acknowledge that:
(a) Ag-Chem Sales shall be hereafter considered a "Guarantor"
and a "Loan Party" under the Credit Agreement.
(b) The Company has submitted a revised Schedule 4.4 to the
Credit Agreement, a copy of which is attached to this consent for
reference, and this new Schedule 4.4 replaces the representations in
the prior Schedule 4.4; and
(c) The Transfer to Sales will not be included in the basket
amounts provided for in Sections 5.2(g)(iii) and 5.2(i)(v) of the
Credit Agreement.
3. Transfer of Assets Among the Loan Parties. Sections 5.2(g), (i) and
(k) of the Credit Agreement are hereby amended in their entirety to read as
follows:
(g) Disposition of Assets; Etc. Sell, lease, license, transfer, assign
or otherwise dispose of any of its business, assets, rights, revenues
or property, real, personal or mixed, tangible or intangible, whether
in one or a series of transactions, other than (i) inventory sold in
the ordinary course of business upon customary credit terms and sales
of obsolete or damaged material or equipment, (ii) the sale of all or
part of Ag-Chem Equipment Co International Corp, a Virgin Islands
corporation and/or Kurstjens Terra-Gator B.V., a Netherlands private
limited liability company, (iii) transfers from one Loan Party to
another Loan Party, and (iv) other sales of assets not to exceed
$3,000,000 in the aggregate for all Loan Parties during any fiscal year
of the Company; provided that so long as any Default or Event of
Default shall exist and be continuing, no sales under clauses (ii) or
(iii) above may be made beyond those contracted for at the time of such
Default or Event of Default.
(i) Investments. Make, commit to make or permit to exist any loans,
investments, advances or extensions of credit to any person, firm or
corporation, other than: (i) Cash Equivalents, (ii) loans not to exceed
$500,000 at any time outstanding and travel advances extended to
officers and employees of a Loan Party in the ordinary course of
business, (iii) investments existing on the Effective Date in
Subsidiaries that are not Loan Parties, (iv) investments by the Company
in other Loan Parties, (v) loans from one Loan Party to another Loan
Party, or (vi) other investments which in the aggregate do not exceed
$1,000,000 at any time after the Effective Date.
(k) Transactions with Affiliates. Enter into, or permit or suffer to
exist, or be a party to, any transaction or arrangement, including the
purchase, sale, exchange or use of any property or asset, or any
interest therein, whether real, personal or mixed, or tangible or
intangible, or the rendering of any service, with any Affiliate that is
not a Loan Party or any director or officer of any Loan Party, except
in the ordinary course of and pursuant to the reasonable requirements
of the Loan Party's business and upon fair and reasonable terms which
are no less favorable to such Loan Party than could be obtained in a
comparable arms-length transaction with a person not an Affiliate or a
director or officer of the Loan Party. The Company will not permit
Ag-Chem Equipment International to have any operations or assets with a
value in excess of $10,000.
4. Ratification. The parties hereto acknowledge and agree that the
terms and provisions of this Third Amendment amend, add to and constitute part
of the Credit Agreement. Except as expressly modified and amended by the terms
of this Third Amendment, all of the other terms and conditions of the Credit
Agreement and all of the documents executed in connection therewith or referred
to or incorporated therein, remain in full force and effect and are hereby
ratified, confirmed and approved.
5. Conflicts. If there is an express conflict between the terms of this
Third Amendment and the terms of the Credit Agreement, or any of the other
agreements or documents executed in connection therewith or referred to or
incorporated therein, the terms of this Third Amendment shall govern and
control.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to Long Term Amended and Restated Revolving Credit Agreement to be duly executed
as of the date first written above.
Ag-Chem Equipment Co., Inc.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Its: Senior Vice President
NBD Bank
By: /s/ Xxxxxxxxxx Xxxxxxx
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Xxxxxxxxxx Xxxxxxx
Its: Vice President
National City Bank of Minneapolis
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: Vice President
Xxxxxx Trust and Savings Bank
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Its: Vice President
GUARANTOR ACKNOWLEDGEMENT
The undersigned hereby acknowledges the terms of this Third Amendment
to Long Term Amended and Restated Revolving Credit Agreement, dated as of
January 1, 1997, and hereby reaffirm each and every term of their respective
Guaranty (Long Term), dated January 12, 1996, given in favor of the Agent and
the Lenders.
Lor*Al Products, Inc.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Its: Vice President
Ag-Chem Equipment Co International Corp.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Its: Vice President
Ag-Chem Equipment Canada Ltd.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Its: Vice President
Soil-Teq, Inc.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Its: Vice President
